5- Sources of IL

Question 1

what’s a treaty?

Answer 1

legal agreement between states that outlines specific rights and obligations for the parties involved.

Question 2

where can we find rules relating to the treaties?

Answer 2

1) part of customary IL
2) Vienna convention on the law of treaties- the authoritative restatement as well as positive law of treaties.

Question 3

some argue that treaties are not sources of law

Answer 3

they are rather a source of obligation under the law that’s binding to its parties.

Question 4

why do treaties have to be obeyed?

Answer 4

pacta sunt servanda -> agreements must be kept.
- the most important rule of customary IL
- but there are some situations where its ok to breach it.

Question 5

pacta sunt servanda

Answer 5

agreements must be kept.

Question 6

why can treaties be sources of IL?

Answer 6

treaties codify customary IL and are accepted to be authoritative statements of customary IL

treaties can not bind non-parties but non-parties can choose to abide by its rules

Question 7

are treaties hard or soft law?

Answer 7

hard law. they can do everything except authorize the violation of peremptory norm (vienna conv)

Question 8

“law making” and “contractual” treaties

Answer 8

law making -> creating new rules
cotractual -> imposing obligations

Question 9

why is there “ratification”?

Answer 9

when communication technology was bad, ambassadors needed to let their head know and that took a long time so they added ratification to see if its compatible with domestic law.

Question 10

ratification in practice

Answer 10

most treaties aren’t binding until their ratified- but in the meantime the state isn’t meant to do anything that defeats the purpose of the treaty

Question 11

ratification is done according to (…) procedures

Answer 11

domestic procedures
- executive (in UK and common wealth countries)
- legislature (in US)

Question 12

monist systems

Answer 12

treaties don’t need to be translated into municipal law, they have effect directly (e.g Netherlands)

Question 13

dualist systems

Answer 13

domestic legitlation is required to translate teh treaty obligations into domestic municipal law. (UK)
its binding in international law, but not in domestic law.

Question 14

which is more: monism/ dualism?

Answer 14

most states have a mix of the two (US)

Question 15

how can treaties end?

Answer 15

1) on its own terms like self-termination expiry or disappearance of essential conditions
2) by withdrawal (denunciation)
3) in response to a serious breach by one party

Question 16

define customary law

Answer 16

intl custom as evidence of a general practice accepted as law.

Question 17

a custom is only law if…

Answer 17

1) there’s evidence of widespread and settled state practice

2) opinion juris- states adhere to the custom due to a sense of legal obligation

Question 18

define opinion juris

Answer 18

states adhere to the custom due to a sense of legal obligation

Question 19

problems with opinion juris

Answer 19

state practice isn’t only through the actions of the executive, but also through domestic courts, and public statements.

therefore, opinion juris is an artificial exercise because it implies that states have a collective mind of their own.

Question 20

how can states prevent being bound by an emerging customary IL?

Answer 20

BY BEING A PERSISTENT OBJECTOR
the state must explicitly and persistently object to the formation of the new customary law. If the state does not do this, it can be bound by the emerging customary law even if it does not agree with it. This is because customary law is based on the actions and beliefs of states, not on written treaties or agreements.

Question 21

“the generalized principles of law recognized by civilized nations”

Answer 21

-> a source of IL !
widely accepted legal principles/ norms followed by the global civilized community.

Question 22

two interpretations of “the generalized principles of law recognized by civilized nations”

Answer 22

1) GPL RCN are commonly accepted legal standards followed by nations in IL.

2) GPL RCN are flexible and universal legal principles based on shared concepts,

Question 23

The ICJ Statute recognizes judicial decisions and writings of publicists as **“subsidiary means” ** to determine rules of law. what does this mean?

Answer 23

“Subsidiary means” aren’t the primary sources of IL, but they help to interpret existing rules. They’re not binding like treaties/ customary law, but they can still be influential.

Question 24

UNGA resolutions as sources of law

Answer 24

while not legally binding they carry significant political weight and affect the development of customary IL.

Question 25

Studies produced by the Inl Law Commission (ILC) as sources of law

Answer 25

is a subsidiary body of the UNGA responsible for making recommendations for IL. Although ILC’s studies aren’t binding they shape IL.

Question 26

UNSC as source of law

Answer 26

does not make law
rather, creates specific obligations backed by the UN charter

Question 27

examples of ius cogens

Answer 27

wars of aggression
genocide/ crimes against humanity
slavery / torture
piracy

Question 28

officially, is there a hierarchy of the basic principles of IL?

Answer 28

no the only hierarchy is that peremptory norms are above anything else.

Question 29

hierarchy in IL

Answer 29

treaty prevails over customary law (for parties in the treaty- doesn’t apply to non-parties)

Question 30

LEX SPECIALIS

Answer 30

the specific rule prevails over the general rule

Question 31

LEX POSTERIOR

Answer 31

the latter rule overrides the earlier rule

Question 32

what if a customary rule emerges after a treaty?

Answer 32

1) if the customary rule is peremptory it overrides the treaty

2) if the parties of the treaty created it: the customary rule will be used to explain the treaty, but it won’t necessarily replace it entirely.